Asha Javeed

Lead Ed­i­tor In­ves­ti­ga­tions

asha.javeed@guardian.co.tt

Ac­tivist Ravi Bal­go­b­in Ma­haraj has been grant­ed leave to ap­ply for ju­di­cial re­view against the out­comes of the In­tegri­ty Com­mis­sion’s (IC) in­ves­ti­ga­tions in­to Prime Min­is­ter Dr Kei­th Row­ley’s In­ez Gate prop­er­ty in To­ba­go.

The leave was grant­ed by Jus­tice Devin­dra Ram­per­sad on Thurs­day.

Un­der the tenure of for­mer IC chair­man Ra­jen­dra Ram­lo­gan, the IC in­ves­ti­gat­ed Dr Row­ley three times on dif­fer­ent as­pects of his ac­qui­si­tion of the To­ba­go town­house and he was cleared all three times.

Ac­cord­ing to Bal­go­b­in’s af­fi­davit, the two cen­tral points of con­tention are the IC’s de­ci­sion not to re­open its in­ves­ti­ga­tion in­to the Prime Min­is­ter’s non-dis­clo­sure to the com­mis­sion in 2019 of his ac­qui­si­tion of the town­house unit “in light of the Prime Min­is­ter know­ing­ly mak­ing a false de­c­la­ra­tion as to the val­ue of the town­house on his De­c­la­ra­tion of In­come, As­sets and Li­a­bil­i­ties, the Prime Min­is­ter fail­ing to dis­close his in­ter­est in the town­house in his State­ment of Reg­is­tra­ble In­ter­est and the Prime Min­is­ter fail­ing to dis­close that he ac­quired the prop­er­ty at a sub­stan­tial un­der­val­ue,” and the IC’s de­ci­sion not to re­port the Prime Min­is­ter’s con­duct to the Di­rec­tor of Pub­lic Pros­e­cu­tions un­der Sec­tion 34 of the In­tegri­ty in Pub­lic Life Act on the ba­sis that there are rea­son­able grounds to sus­pect he has com­mit­ted one or more crim­i­nal of­fences.

The IC’s de­ci­sion to ini­ti­ate three sep­a­rate in­ves­ti­ga­tions in­to Dr Row­ley earned them his ire and in his view, stemmed from a state­ment made by the Op­po­si­tion Unit­ed Na­tion­al Con­gress (UNC)

“I have been the sub­ject of a con­stant stream of vil­i­fi­ca­tion and in­ves­ti­ga­tion by the UNC and the In­tegri­ty Com­mis­sion,” Dr Row­ley told the Sun­day Guardian ex­clu­sive­ly last week.

“I ex­pect noth­ing less from the UNC, but I am en­ti­tled to ex­pect in­tegri­ty from peo­ple who agree to serve on the In­tegri­ty Com­mis­sion. Those with­out in­tegri­ty, who get on the com­mis­sion are not part of any so­lu­tion to fight­ing cor­rup­tion, they are part of the cor­rup­tion that should be fought,” he had said.

On the no­tion that the IC favours him by clear­ing him, he posit­ed that had they not done the work of the UNC, to be­gin with, there would be no need for ex­on­er­a­tion.

“Be­ing cleared by find­ing no ev­i­dence to sup­port al­le­ga­tions is not PNM, it is called EX­ON­ER­A­TION. Fish­ing for in­for­ma­tion to sup­port po­lit­i­cal al­le­ga­tions, find­ing no ev­i­dence then be­ing mo­ti­vat­ed to re-open THE SAME IN­VES­TI­GA­TION is mal­ice. Clos­ing the re­opened in­ves­ti­ga­tion in the face of a le­gal threat is PROOF of the lack of au­thor­i­ty in at­tempt­ing to smear me in a fish­ing ex­pe­di­tion to please oth­ers,” he re­spond­ed.

How­ev­er, dis­sat­is­fied with the scope and de­ter­mi­na­tions of the IC’s in­ves­ti­ga­tions, Balog­bin filed for ju­di­cial re­view.

In his ap­pli­ca­tion, he sought a “de­c­la­ra­tion that the com­mis­sion’s de­ci­sion to ter­mi­nate and/or refuse to re-open the in­ves­ti­ga­tion in­to the com­plaint against the Prime Min­is­ter Dr Kei­th Row­ley in ac­cor­dance with Sec­tion 34(6) of the IPLA is il­le­gal, un­fair, un­rea­son­able and ir­ra­tional.”

What the IC said

In its re­spons­es to Op­po­si­tion MP Sad­dam Ho­sein who first raised the is­sue in 2021, here is the IC’s ra­tio­nale for its de­ci­sions fol­low­ing the in­ves­ti­ga­tions:

On the is­sue of know­ing­ly mak­ing a false de­c­la­ra­tion: “8. The com­mis­sion there­fore main­tains its po­si­tion that it could not find that rea­son­able grounds ex­ist­ed to draw the in­fer­ence that Dr Row­ley know­ing­ly made a false state­ment of the es­ti­mat­ed val­ue of the said town­house unit in his De­c­la­ra­tion of In­come, As­sets and Li­a­bil­i­ties (“Form A”). More­over, the com­mis­sion again re­jects your in­sin­u­a­tion that po­lit­i­cal bias had an im­pact on its de­ci­sion with re­spect to its in­ves­ti­ga­tion.”

Con­cern­ing non-dis­clo­sure in Form B: “15. Whilst the com­mis­sion is of the opin­ion that a crim­i­nal sanc­tion does not ap­ply to a breach of Sec­tion 14 of the IPLA, the Com­mis­sion wish­es to in­form you that it has since re­quest­ed of Dr Row­ley that he amend his Form B to re­flect the true state of his af­fairs ac­cu­rate­ly, and par­tic­u­lar­ly, that he has a ben­e­fi­cial in­ter­est in the said town­house unit. 16. The com­mis­sion views that it has there­fore not adopt­ed an il­log­i­cal, un­rea­son­able and ar­bi­trary opin­ion in its de­ci­sion not to re­fer a breach of Sec­tion 14 of the IPLA to the OPP in ac­cor­dance with Sec­tion 34(7) of the IPLA. The com­mis­sion fur­ther re­futes that your client has sat­is­fied the req­ui­site grounds to al­low for ju­di­cial re­view of this de­ci­sion.”

On the is­sue of the fail­ure to dis­close the $480,000 dif­fer­ence in val­ue: “ 21. Fur­ther­more, based on the con­tents of the com­plaint and the ev­i­dence col­lect­ed, the com­mis­sion, with­out more, is not of the view that there was any pri­ma fa­cie un­eth­i­cal and il­le­gal pay­ment which arose sole­ly from Mr Warn­er’s in­volve­ment with the po­lit­i­cal par­ty, the Peo­ple’s Na­tion­al Move­ment, and/or his re­ceipt of gov­ern­ment con­tracts as broad­ly stat­ed by you.”

On the re­quest for de­tails of the com­mis­sion’s in­ves­ti­ga­tion: “In light of the fore­go­ing, as re­gards the en­quiries itemised as (a) to (f) and con­tained un­der the head­ing “Le­gal Fees” in the Pre-Ac­tion Pro­to­col Let­ter, the com­mis­sion is un­able to pro­vide such in­for­ma­tion pur­suant to your re­quest. Nonethe­less, the com­mis­sion in­forms you that en­quiries were made of wit­ness­es as the com­mis­sion de­ter­mined to be rel­e­vant.”

In the course of their in­ves­ti­ga­tion, the IC had de­ter­mined that Dr Row­ley re­ceived a dis­count which amount­ed to a gift but was not con­nect­ed di­rect­ly or in­di­rect­ly with the per­for­mance of the du­ties of his of­fice.

In cor­re­spon­dence to Ho­sein, the IC said it has de­cid­ed to con­sid­er and en­quire in­to any re­lat­ed link be­tween the re­ceipt of the said gift and sub­se­quent con­tracts grant­ed to Mr Warn­er and/or com­pa­nies with which he is af­fil­i­at­ed or as­so­ci­at­ed and has an in­ter­est there­in pur­suant to Sec­tion 33/a l of the IPLA. Sec­tion 33{a ) of the IPLA pro­vides as fol­lows: “33. The com­mis­sion- (a) may on its own ini­tia­tive;... con­sid­er and en­quire in­to any al­leged breach­es of the Act or any al­le­ga­tions of cor­rupt or dis­hon­est con­duct.”

In an­oth­er let­ter, it said:

“The com­mis­sion has not­ed that ref­er­ence was made to the In­ez Gate town­house pur­chased by Dr Row­ley as well as the re­ceipt of a dis­count by Dr Row­ley. How­ev­er, it would ap­pear that the com­plaint cen­tred around a pos­si­ble con­flict of in­ter­est that may have arisen due to the re­ceipt of con­tracts by com­pa­nies as­so­ci­at­ed with Mr Warn­er and his al­leged role as a fi­nancier of the PNM. Af­ter care­ful con­sid­er­a­tion of the con­tents of the com­plaint as well as the fur­ther par­tic­u­lars pro­vid­ed in your cor­re­spon­dence dat­ed Oc­to­ber 19, 2023, and sent on be­half of your client, the com­mis­sion is of the opin­ion that a suf­fi­cient ba­sis has not been pro­vid­ed for pur­su­ing the mat­ter as con­tained in the com­plaint. The com­mis­sion ac­cord­ing­ly ad­vis­es that it has de­cid­ed to re­ject the com­plaint, pur­suant to Sec­tion 34A(l)(c} and (d) of the In­tegri­ty in Pub­lic Life Act Chap­ter 22:01 which pro­vides as fol­lows: “34A.(1). The com­mis­sion may, on re­ceipt of a com­plaint and af­ter ex­am­in­ing same, re­ject the com­plaint if the com­mis­sion is of the opin­ion that the com­plaint ... (c) is de­void of suf­fi­cient grounds for an in­ves­ti­ga­tion or (d) is not sup­port­ed by ev­i­dence of pro­ba­tive val­ue.”

What Bal­go­b­in’s ap­pli­ca­tion claims

Ac­cord­ing to Bal­go­b­in’s af­fi­davit, “the com­mis­sion erred be­cause it failed to ap­pre­ci­ate that in the con­text, scheme and pur­pose of the act, once a gen­uine com­plaint was made which would cause a rea­son­able com­mis­sion to launch an in­ves­ti­ga­tion, it was du­ty bound to con­duct a gen­uine, mean­ing­ful and prop­er in­ves­ti­ga­tion.

“By un­fair­ly shift­ing the ev­i­den­tial bur­den and/or el­e­vat­ing the height of the ev­i­den­tial hur­dle which a com­plainant must cross, the com­mis­sion has act­ed un­fair­ly, il­le­gal­ly and ir­ra­tional­ly. It failed to ap­pre­ci­ate the fact that the or­di­nary cit­i­zen will ob­vi­ous­ly not have ac­cess to gov­ern­ment con­tracts and con­fi­den­tial in­for­ma­tion to which the com­mis­sion could eas­i­ly gain ac­cess dur­ing the course of its in­ves­ti­ga­tion,” the ap­pli­ca­tion said.

He ar­gued that the com­mis­sion adopt­ed an un­du­ly nar­row and re­stric­tive in­ves­ti­ga­tion and failed to ful­ly em­ploy and in­voke the sig­nif­i­cant pow­ers grant­ed by the IPLA to it that en­abled it to con­duct a prop­er in­ves­ti­ga­tion.

“ In par­tic­u­lar:

• The com­mis­sion breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion in re­spect of re­ject­ing the com­plaint to de­ter­mine whether the Prime Min­is­ter de­lib­er­ate­ly un­der­val­ued the BIR by pay­ing less stamp du­ty than he would oth­er­wise be legal­ly re­quired to pay based on the true mar­ket val­ue of the prop­er­ty.

• The com­mis­sion breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion in re­spect of re­ject­ing the com­plaint to de­ter­mine whether the Prime Min­is­ter mis­con­duct­ed him­self by pur­chas­ing a town­house that was worth $1.8M for the amaz­ing­ly dis­count­ed price of $1.2 mil­lion from a sup­port­er and fi­nancier of the PNM who is in re­ceipt of nu­mer­ous mul­ti-mil­lion-dol­lar con­tracts from the Gov­ern­ment and the then PNM con­trolled To­ba­go House of As­sem­bly (“THA”).”

• The com­mis­sion breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion in re­spect of re­ject­ing the com­plaint to de­ter­mine whether Mr Warn­er bought a unit for him­self at $1.6 mil­lion and three years lat­er, re­sells to the Row­ley fam­i­ly at a sub­stan­tial loss for the low­er price of $1.2m mil­lion when rel­a­tive­ly small­er units were sell­ing on the open mar­ket for close to $3M.

• The com­mis­sion breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion in re­spect of re­ject­ing the com­plaint to de­ter­mine whether the con­duct of the Prime Min­is­ter and the cir­cum­stances sur­round­ing the pur­chase of the town­house was in breach of sec­tion 21(1)(c) of the Act: “(1) A per­son to whom this Part ap­plies shall en­sure that he per­forms his func­tions and ad­min­is­ters the pub­lic re­sources for which he is re­spon­si­ble in an ef­fec­tive and ef­fi­cient man­ner and shall–(c) arrange his pri­vate in­ter­est whether pe­cu­niary or oth­er­wise in such a man­ner as to main­tain pub­lic con­fi­dence and trust in his in­tegri­ty.”

• The com­mis­sion breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion in re­spect of re­ject­ing the com­plaint to de­ter­mine whether the Prime Min­is­ter has brought his of­fice in­to dis­re­pute be­cause the trans­ac­tion is re­plete with the in­escapable and ir­re­sistible in­fer­ence of a sweet­heart deal made be­tween a ma­jor gov­ern­ment con­trac­tor and po­lit­i­cal fi­nancier and the Prime Min­is­ter.

• The com­mis­sion act­ed un­rea­son­ably and/or breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion to re­ject the com­plaint call­ing for an in­ves­ti­ga­tion in­to the de­lib­er­ate in­ter­fer­ence and/or al­ter­ation of the fig­ure rep­re­sent­ing the val­ue of the town­house on Form A from what ap­pears to be $1.68M to $1.2 mil­lion on a statu­to­ry form which was cer­ti­fied and signed by the Prime Min­is­ter.

• The com­mis­sion act­ed un­rea­son­ably and/or breached its du­ties of in­quiry un­der IPLA and/or at com­mon law by fail­ing to take all rea­son­able steps to ac­quaint it­self with in­for­ma­tion rel­e­vant to make a prop­er­ly in­formed de­ci­sion in re­spect of re­ject­ing the com­plaint to ini­ti­ate an in­ves­ti­ga­tion in­to a glar­ing breach of the IPLA where the Prime Min­is­ter is buy­ing an as­set worth $1.8 mil­lion for $1.2 mil­lion from a po­lit­i­cal fi­nancier and mul­ti­mil­lion-dol­lar gov­ern­ment con­trac­tor and not dis­clos­ing same.